from the really-now? dept

This is hardly a surprise, but similar to the Joel Tenenbaum case, Jammie Thomas-Rasset (the other person sued for copyright infringement for using a file sharing system), has lost again. The appeals court (8th Circuit) has ruled that $9,250 per song infringed is perfectly reasonable and that the judge in the case, Michael Davis, erred in calling for a new trial after the initial jury verdict (the first of three). There were a number of procedural issues here, and it's worth pointing out that Thomas-Rasset herself more or less asked the court to bring back this first verdict and focus on the Constitutionality of the damages amount. So, the whole mess with the three separate district court trials sort of gets swept under the rug. However, the court simply isn't buying Thomas-Rasset's claim that the statutory damages are unconstitutionally punitive and a violation of due process. Basically, it says that the fact that statutory damages are completely out of whack with actual damages doesn't matter, because the point of statutory damages is that they're disconnected from actual damages on purpose (because, in theory, they're put in place because actual damages are difficult to assess).

Given that, the court then takes the statutory range (basically $750 to $150,000 -- upper limit is $30,000 if not willful) and basically says, "well, $9,250 is at the low end of the range, so it's fine."

We conclude that an award of $9,250 per each
of twenty-four works is not “so severe and oppressive as to be wholly disproportioned
to the offense and obviously unreasonable.” .... Congress, exercising its
“wide latitude of discretion,”... set a statutory damages range for willful
copyright infringement of $750 to $150,000 per infringed work....
The award here is toward the lower end of this broad range. As in Williams, “the
interests of the public, the numberless opportunities for committing the offense, and
the need for securing uniform adherence to [federal law]” support the
constitutionality of the award.

Because of this, it argues that crazy copyright statutory damages somehow automatically "motivate the creative activity."

Congress’s protection of copyrights is not a “special private benefit,” but is
meant to achieve an important public interest: “to motivate the creative activity of
authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has
expired.” ... With the rapid advancement of technology, copyright infringement through
online file-sharing has become a serious problem in the recording industry. Evidence at trial showed that revenues across the industry decreased by fifty percent between
1999 and 2006, a decline that the record companies attributed to piracy. This decline
in revenue caused a corresponding drop in industry jobs and a reduction in the
number of artists represented and albums released

The court then accepts as fact (a) these highly dubious claims that the record labels are in trouble and it's all due to copyright infringement online and (b) that such awards actually act as a deterrent. The truth is both of these statements are factually incorrect. The record labels are in trouble because they failed to adapt to a changing market. And awards of many thousands of dollars for infringing on a single song don't act as a deterrent at all. They just seem so far away from any sense of reality that they actually make people respect copyright even less.

I've long been a believer that the RIAA and the labels sued Tenenbaum and Thomas-Rasset for just a couple dozen songs, but then kept making the point that they were really sharing over a thousand to defend the ridiculously large awards. If that's the case, then they should have sued over all of the songs -- because you can't defend against that which you weren't sued over. In this appeal, Thomas-Rasset more or less tried to use a variation on that argument to prove the insanity of the $9,250 number, pointing out that if she had been sued over 1,000 songs, then she would have owed $9.25 million, which just seems obviously ridiculous. Unfortunately, the court makes a weird statement to avoid that logic:

The absolute amount of the award, not just the amount per violation, is
relevant to whether the award is “so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable.”

Is that really true, though? The court seems to be saying that it's only the total amount that matters, and not the amount per violation. But that makes no sense. Since the question is whether it's "disproportioned to the offense" then, um, the offense itself is important. Yet, here the court is arguing "24 songs or 1,000 songs, doesn't matter -- just the total amount matters."

The court also said that Judge Davis shouldn't have ordered a mistrial, as he did over faulty jury instructions in that original jury trial. The issue was over mistaken jury instructions, concerning whether or not "making available" is infringement. The RIAA was hoping that the court would also confirm their highly questionable theory that merely "making available" (i.e., putting something in a shared folder) is infringement itself, rather than the view of many that you have to show something that actually violates one of the rights under the Copyright Act (distribution, reproduction, etc.). Making available is not one of those rights, but the RIAA and copyright maximalists like to pretend it is, and they were hoping the court here would say it was. Instead, the court punts on the issue, saying that because it can handle the main issues at hand without having to deal with the making available question, they'll skip it, thank you very much:

But
because the verdicts returned by the second and third juries are sufficient to justify
these remedies, it is unnecessary for this court to consider the merits of the district
court’s order granting a new trial after the first verdict. Important though the “making
available” legal issue may be to the recording companies, they are not entitled to an
opinion on an issue of law that is unnecessary for the remedies sought or to a
freestanding decision on whether Thomas-Rasset violated the law by making
recordings available.

Thomas-Rasset's attorneys have made it clear they plan to appeal, though there's no guarantee that the case will go anywhere. It appears unlikely that there will be any sort of circuit split between this case and the Tenenbaum case, as both seem to be heading in similar directions (though somewhat different paths). And, as I've said before, both of these cases were the wrong ones to fight for a precedent on. In both cases, you have clear examples of "bad actors" -- who not only infringed, but knew they were infringing -- and who then took steps that make it easy to portray them as bad actors in court, whether it was trying to blame others or outright lying to the court. Both Thomas-Rasset and Tenenbaum should have settled their cases long ago. There are important Constitutional questions about statutory damages for copyright, but these two make bad cases and they're making it easy for the courts to put in place dangerous precedents that guarantee that copyright law gets no respect from the public, and that damages are wholly outside the realm of reasonable.

On the question of damages, we conclude that a statutory damages award of $9,250 for each of the twenty-four infringed songs, for a total of $222,000, does not contravene the Due Process Clause. The district court erred in reducing the third jury’s verdict to $2,250 per work, for a total of $54,000, on the ground that this amount was the maximum permitted by the Constitution.

Tenenbaum and Thomas-Rasset, 0 for 2 on the due process challenges on appeal.

The court then accepts as fact that (a) these highly dubious claims that the record labels are in trouble and it's all due to copyright infringement online and (b) that such awards actually act as a deterrent. The truth is both of these statements are factually incorrect. The record labels are in trouble because they failed to adapt to a changing market. And awards of many thousands of dollars for infringing on a single song don't act as a deterrent at all. They just seem so far away from any sense of reality that they actually make people respect copyright even less.

They failed to adopt to a changing market? LOL! That's code for pirates ate their lunch and willfully violated their rights. Ever the apologist, Mikey. You blame the victims. The court of appeals knows better than to blame anyone but the pirates, i.e., the intentional wrongdoers. Funny how your pirate logic doesn't ever hold up in court. Rather than blame the party that did no wrong, they blame the part that actually did something wrong. Crazy.

And please, stop claiming that you know for 100% sure that these damages don't act as a deterrent ("don't act as a deterrent at all"). Rubbish. I don't let my kids or friends pirate at my house because I worry about such damages. I suspect others do as well. Only an apologist would claim that it has no deterrent effect whatsoever, and then offer zero proof to back it up. That's working backwards (your specialty!).

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I don't let my kids or friends pirate at my house because I worry about such damages.

And I thought you only did it because of moral reasons -- at least that's what you were claiming this morning in a different thread. Yet here you are flat out admitting that if the statutory damages risks were lower, suddenly your morals would change and you'd let your kids file share?

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And I thought you only did it because of moral reasons -- at least that's what you were claiming this morning in a different thread. Yet here you are flat out admitting that if the statutory damages risks were lower, suddenly your morals would change and you'd let your kids file share?

Ha!

I expected one your minions to make this point. And I already had planned my response. You guys are too obvious. I had house-guests last week. I gave them the code for my wifi, and I told them to please not download/upload/stream/make available anything copyrighted. Why? Because I don't want to face that kind of liability and because I think it's wrong. I tell my kids not to infringe because it's wrong and I don't want the liability. Sad try at a "gotcha!", Mike. Really. The liability is but one factor for why I don't permit it in my house. This stuff isn't hard.

Now, why haven't you actually addressed my points, like about how you have no proof that it's an effective deterrent? Unwilling to admit you made that up?

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I expected one your minions to make this point. And I already had planned my response. You guys are too obvious. I had house-guests last week. I gave them the code for my wifi, and I told them to please not download/upload/stream/make available anything copyrighted. Why? Because I don't want to face that kind of liability and because I think it's wrong. I tell my kids not to infringe because it's wrong and I don't want the liability. Sad try at a "gotcha!", Mike. Really. The liability is but one factor for why I don't permit it in my house. This stuff isn't hard.

Then the change in amounts doesn't make a difference. It doesn't act as a deterrent because you already admit that you don't do it because you think it's wrong.

So, it doesn't act as a deterrent and you were lying.

Now, why haven't you actually addressed my points, like about how you have no proof that it's an effective deterrent?

Because we have centuries of history that show the increased enforcement has never, ever worked as a deterrent for copyright infringement. Never. There's no proof of it. Every time enforcement increases, you get a very brief decline in the activity until it picks right back up again at the previous pace.

I didn't make that statement out of nowhere. It's every single bit of research on this subject.

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hen the change in amounts doesn't make a difference. It doesn't act as a deterrent because you already admit that you don't do it because you think it's wrong.

So, it doesn't act as a deterrent and you were lying.

I don't want people in my house to infringe for more than one reason. The fact that the damages are so steep is why I'm especially careful to warn house-guests not to do it (my kids already know better). If there were only the wrongness of it, without more, I wouldn't be so adamant that house-guests not infringe on my wifi. So no, it's not a lie. The damages are a deterrent for me. I personally am proof that your theory of absolutely no deterrent effect ever is wrong.

Because we have centuries of history that show the increased enforcement has never, ever worked as a deterrent for copyright infringement. Never. There's no proof of it. Every time enforcement increases, you get a very brief decline in the activity until it picks right back up again at the previous pace.

I didn't make that statement out of nowhere. It's every single bit of research on this subject.

Centuries of history show that enforcement never, ever, even in the slightest works as a deterrent. LOL! Citation needed. Give me a break. I love how you pretend like these things are crystal clear and that there's no other possibility and that what you're saying is the gospel truth without any variations whatsoever. Do you really believe this nonsense, or are you being intentionally disingenuous? I suspect the latter. But please, cite your proof positive that absolutely positively every single time no other possibility on earth enforcement doesn't act as a deterrent. Not once, not ever. Never, ever. I'll await this proof that must have been handed down by God personally, that's how perfect it is. Sheesh, you're a piece of work.

I know you have no such proof. And I know you're too dishonest to admit it. You do realize that there exists no infallible studies, right?

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I guess you aren't aware that at one point, copying the patterns of buttons (or something to that effect) carried with it the penalty of death. Guess what happened? People didn't give a flying f*ck and continued doing so.

What's that say? That not even death will keep people from copying.

At that point, the rest of your comment isn't even worth ripping apart line by line.

And could you please get off your high horse. We get it, you're apparently morally superior to the rest of us (and you certainly act like quite the innocent when others insult you, I guess we'll just ignore all your slights about Mike and Marcus and everyone in general in such situations... because they kind of ruin your credibility when it comes to crying foul over cheap shots).

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"I don't want people in my house to infringe for more than one reason. The fact that the damages are so steep is why I'm especially careful to warn house-guests not to do it (my kids already know better). If there were only the wrongness of it, without more, I wouldn't be so adamant that house-guests not infringe on my wifi. So no, it's not a lie. The damages are a deterrent for me. I personally am proof that your theory of absolutely no deterrent effect ever is wrong."

I have but a single, very simple question for you: does there exist a single person in the US that will choose to not pirate something that they would have pirated had Thomas only gotten a $111k fine? How about a $55k fine? A $27k fine?

And if you're feeling generous, here's a second question: does there exist one single person who will pirate something today because Thomas did not get a $444k fine? $888k? How about $1.8 m?

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Question, average_joe

You say to your kids not share copyrighted works using your wifi...
How do you ensure this? Your avatar here on this site is itself copyrighted! How do you ensure your kids don't share anything? (Oh wait a minute...that's how you do it. The ONLY way to ensure your kids don't share copyrighted works is to ensure they don't share ANYTHING at all!)

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Of course you won't find it neatly filed away under "Copyright" as both the name of the law/concept are a relatively new innovation with a new stated goal.

Among other things some Roman emperors forbade unauthorized images of them be made and sold. Each one that tried that failed and the market flooded with busts and other goodies portraying the Emperor's likeness flooded the empire. Given that manufacture or these things often brought the death penalty with them and not a fine that may seem surprising but all the emperor did was to create a market for these things where none existed before. Remember, too, that almost the only way of avoiding one of several horrific deaths the Romans kept on hand for executions, was to be a Roman citizen then you'd have the relative mercy of being beheaded instead of all the other agonizing alternatives the Roman's kept on hand.

Remember, too, that the Emperor was a God and worshiped as one in Rome so he'd expect his orders to be instantly followed whether he was sane or not.

That you can't read or research history doesn't surprise me nor does not being able to find what Mike could quite easily.

Other places enforcement didn't act as a deterrent are easily found too. Poaching by hungry peasants on the local baron's hunting preserve was never stopped by enforcement. Ever. Thus far the criminalization of marijuana complete with deterrence hasn't had much in the way of deterrence value and far more to do with taking up and creating an artificial demand for more prison cells. Oh, and increasingly violent activity by suppliers of an otherwise mostly harmless substance is criminal but not, for the most part, the use of the drug itself. It has far better uses as a medicinal agent. So much for the automatic increase in enforcement married to a decrease in whatever activity supposedly it's designed to deter just isn't there. Actually the best case against your view about that is the rise of Christianity given that it flourished and spread widely, even as Christians were being killed off at an increasing rate while adherents to the religion increased.

I'm not staying up all night to prove you're no historian or even a candidate for becoming one. It just isn't necessary. There's no need for Mike to "believe" that the historical evidence he has is anything but fact. It's historical fact.

And you are a moron.

I just hope that you'll make a better lawyer than your research skills indicate here because you're simply hopeless at researching history except to enter into your own style of "confirmation bias". Then again, lawyers have to do research as well so I guess you'd be well off my list should I need a solicitor one day.

You are right on one score. There is no infallibility here. Increased enforcement can work for a short time period...short, before the activity being deterred returns to a normal level or even slightly higher. There may fallibility there but the mass of the evidence agrees with Mike.

As for being a piece of work, have a good long look in the mirror. You'll see one there while you shave. If you shave.

Please try not to trip over your ego on steroids on the way out the door and fall flat on your face into your ignorance.

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I don't want people in my house to infringe for more than one reason. The fact that the damages are so steep is why I'm especially careful to warn house-guests not to do it (my kids already know better).

Right, they're swapping in school via flash drives/cell phones.

But please, cite your proof positive that absolutely positively every single time no other possibility on earth enforcement doesn't act as a deterrent.

Overreaching again, are we? He spoke about an deterrent to copyright infringement and given the constant whinings of your **AA buddies no law so far has managed to stop piracy.

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Because it's not effective...how many "criminals" are involved in the forever revolving door known as prison "joe"? Real criminals don't give a damn about being caught "joe"! SO if these very few people who are being castrated in these ridiculous court cases just go back to sharing again..what are you and your pathetic democracy ridden scumbags going to do? Oh that's right...we are all criminals now so why bother to give a damn.

You don't even think about wtf you are fighting for...it's all vitriol coming down from trained mentality. Either way I dream of an actual republic establishing itself in this country soon enough, democracy is a joke.

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In most parts of the world, zombies are known for repeating "BRAINS" over and over. However, in Techdirt, zombies utter the more complex "ADDRESS MY POINTS". To date, leading zombologists have been unable to offer any insight regarding this odd behavior; however, the general agreement is that this particular subspecies still qualifies as "zombie". Just as traditional zombies never stop demanding brains no matter how many they eat, Techdirt zombies will never be satisfied no matter how many times you address their points.

I understood the point you were trying to make, but not downloading or uploading anything copyrighted is flat out impossible. In today's insane copyright regime, everything is copyrighted by default, with very few exceptions (like really old stuff or things produced by a few governments). Your wording was sloppy.

You should have said "please not download/upload/stream/make available anything copyrighted unless the copyright owner gave explicit permission". And even then you have a problem. Say I use your wifi to read a blog which has a picture of a cute cat. Said picture happened to be copyrighted, and the copyright owner never gave explicit permission (either because it was copied without the copyright owner's knowledge, or because the copyright owner simply does not care about silly legalities and does not care if people copy the cute picture). I just downloaded a copyrighted picture without explicit permission from the copyright owner.

So, a better one then: "please not download/upload/stream/make available anything copyrighted, unless you have an explicit or implicit license or can say it is fair use or [insert other limitations and exceptions to copyright]". And then the house-guest gives up using your wifi, because the house guest would have to be a lawyer to know whether he has a valid implicit license, whether the one giving said implicit license had the right to do so, whether one of the many narrow exceptions to copyright applies, and so on.

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"So, a better one then: "please not download/upload/stream/make available anything copyrighted, unless you have an explicit or implicit license or can say it is fair use or [insert other limitations and exceptions to copyright]". And then the house-guest gives up using your wifi, because the house guest would have to be a lawyer to know whether he has a valid implicit license, whether the one giving said implicit license had the right to do so, whether one of the many narrow exceptions to copyright applies, and so on."

Not true.

When I go to the NBC.COM site, I feel that I have license to watch the content they provide. When I got to YouTube, I make the good faith assumption that they have the rights to distribute the material.

If I went to a site called "pirate movie download den", I can be pretty sure they don't have the rights. When in doubt, air on the side of caution.

You don't need to be a lawyer to have common sense. It's pretty comical to think otherwise.

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"If I went to a site called "pirate movie download den", I can be pretty sure they don't have the rights. When in doubt, air on the side of caution."

OK, guide me through the world I live in. I go to one torrent site and they have very strict rules for uploading. Nothing on any label that objects to their music being shared, nothing by any artist who objects. I've uploaded there and I'm very confident that the music I get at their site is OK to share and distribute.

The other sites I go to don't have rules, but I see a lot of the same music, so I know they have music that I can legally download.

HOW DO I TELL WHICH IS WHICH? Are average music consumers really expected to keep up-to-date lists of all the no-downloading-allowed labels and artists? Seriously?

I think what you're saying is that "free" should not be a legal distribution model. And you also seem to be saying that content that is legally uploaded and downloaded from a site like Pirate Bay is somehow tainted because not all of their torrents are OK with the RIAA/MPAA/porn producers, etc.

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"I think what you're saying is that "free" should not be a legal distribution model."

So true. That's what "freetard" is about. If they could some would wan to make free illegal as it is lost revenue to someone. Those people have no higher values than making money for themselves, any other consideration such as freedom of expression can only be a perversion from "freeloaders"

Personally I can see a clear growth trend towards free distribution. Damn good stuff too.

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You feel? You feel you have a licence?

Are you sure?

Surely as a lawyer, you know that feelings don't belong in law (except in cases of crimes of passion, like manslaughter, but we're not talking about them).
As a lawyer, wouldn't you want to make sure? Especially about Youtube? You have a good faith assumption that it has the rights? Okay...then what about whenever its sued? Viacom sued because Youtube supposedly knew (somehow) that certain videos weren't authorized.
Is the average Youtube viewer supposed to do a background check on the video and uploader before they watch?

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With youtube, I don't intentionally seek out copyright material, such as TV shows and movies. I tend to view stuff on "official" pages, Vevo, and the like. I feel that, in good faith, I am legal. I may not be at some times, but that isn't from intent to break the law. I, like other consumers, can be mislead.

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You're right to be cautious, as you can't unsee what you have seen. You'll be safe when rightsholders private copy-force will remove screwballs of people who ever saw anything for free that they shouldnt. I'll be doing everything as you do from now on. Any other good tips for us ignorant spacetards ?

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There are reasonable steps you can take. Do you take them?

And even those won't prevent you from infringing.

Aside the fact you are obnoxious, your world must be very boring and monochrome. I imagine you avoid making any kind of derivative work. Joking with a copyrighted work by using a few frames for fun? BLASPHEMY! Using the tune of an artist with self made funny lyrics? DAMN PIRATEY FREETARDS!

I pity your children. Except that they must be downloading stuff right under your nose or at least infringing without knowing. Ultimately, I pity you.

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It's worth noting though Ninja, that the AC you are replying to is most assuredly average_joe. The same average_joe who uses as his avatar something that is most assuredly not his as far as copyright/trademark goes.

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I feel that I have license to watch the content they provide

And you surely know they own the rights to all the content displayed there, right? Because none of those "content providers" ever provided any copyright infringing content, right? They can't be wrong, right? Viacom didn't sue Youtube over videos it uploaded itself, right?

You don't need to be a lawyer to have common sense. It's pretty comical to think otherwise.

Indeed. Since copyright has no common sense in it nowadays it's safe to assume you are clueless.

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Common sense really? I this day and age people are sueing and getting large rewards for things like spilling coffee on themselves and complaining it was hot, or riding a bike down a dark alley dressed in black, without putting the INCLUDED reflectors on and getting hit by a car.
Everything is always someone elses fault these days and is lucrative to say the least. You can rob a bank or shoot a couple hundred people these days but if your mommy beat you or your daddy accidentally bumped your weiner while changing your diaper so common sense has no part in today s society, only money and laws regardless how dumb.
So sueing someone for $9k for each song they got from bittorrent or whereever seems about on pace.
I just wish our judicial system put as much effort and bankrupting penalties towards the real problems in this world. People can steal your bank info, steal your identity and ruin your life, rape your kids and put pics of it online, but man that is to hard to figure out however but someone shared a dollar song shit we gotta pulverize them.
If anyone believes this is acceptable, that basically sueing someone 9 thousand times the worth of the infringed work then maybe this country really has an untapped market for shrinks!
How come they did not go after the people who downloaded the song off of this lady? Why should they the less defendants the less the probability of any effective defense. Classic case of bullying is all it was. There is no way that at best the fine should not of been anymore then 100 times the loss! at worst case she should of been fined $2400. Oh but the legal offense cost that for just one hour, tough shit cost of doing business! Same thing the average working man gets told when he gets screwed by the phone company, a hospital or whoever we get told it would cost more to sue then what we would get back, same to these pricks. They should be forced to play by the same rules as everyone else, but unfortunately in this world big money wins everytime, unfortunate side effect of letting financial contributions into the political/legal arena.

Maybe, just maybe someday we will wake up and see that the "little guys" out number the big guys and if it were not for the little guys there would be no where as many big guys because of noone buys the shit they are peddling well you get the rest. Everyone sees some of these foreign countries on the news you see the people going crazy in the street, protesting the bs their government is doing, maybe it is about time we follow suit.

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I don't remember exactly what I said, but the message was clear that I was asking my house-guests not to infringe using my wifi. You're obviously right that lots of copyrighted stuff is uploaded/downloaded/streamed/etc as a matter of course. Even reading these comments involves downloading copyrighted text.

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So why bother telling your kids not to infringe? You've just said, they're gonna be doing it anyway! In today's world, short of living in a cave with a blindfold across your eyes and fingers stuck in your ears, there isn't a way to avoid infringing copyright.

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and I told them to please not download/upload/stream/make available anything copyrighted

Wow, how useful, then, to give them access. You don't understand that (for all practical purposes) your post, my post, every email you receive or send, all content on every website --- it's all protected by copyright?

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lol, way to cherry pick something, take it out of context and create a strawman arguement

according to you mike, since murder, rape and pedophiles still continue to do these things, against the law, and they KNOW it is against the law, but has no effect on them what so ever, we should eliminate the law then?, according to your logic?

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It's takes a seriously disgusting son of a bitch to use murder, rape, and pedophilia to justify your opinion on copyright. You best hope that someone who's suffered from those crimes never hears you say that out loud.

If you had a brain of any kind, you'd realize that if they laws don't solve the problem, then you haven't properly assessed the problem and taken care of the reasons that people are compelled to such things. In other words, if laws don't stop the behavior, then you're doing it wrong.

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The argument is without merit when people use ad homs and disgraceful tactics like equating violent crime to civil tort.

"Too bad you and your friends 'report-censored' him again."

You are one despicable person to make such a fallacious accusation. How is collapsing the comment and highlighting it with bright text, that actually makes it stand out, censorship? Censorship would be if the comment ceased to exist or is rendered effectively impossible to access (like free speech zones). You're such an underhanded and dishonest person that you'll grasp at anything that you can twist to match your distorted point of view.

But what am I thinking? You people never actually participate in a civil debate. You just ignore the facts, dodge the question, and go straight to the ad hom attacks. You never actually address the argument with data-driven counter-arguments. You disregard that and attack the messenger in an impotent, but desperate, attempt to deflate the argument by discrediting the person making the argument. You do things like the prior comment where you insult the victims of violent crimes by using them as tools for your own petty agenda.
You disgust me.

All you do is scream "PIRATE MIKE... PIRATE MIKE" over and over hoping that will make everyone suddenly respect your viewpoint. No, you just sound like a butt-hurt little child throwing a temper tantrum. It's not even clever, it's just boring and annoying. You're like the TV ads that everyone puts on MUTE. I don't even know why I'm wasting my time replying to you; you'll just come back with some snide insult to put me "in my place".

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Just to let you know...I fucking hate you. I hate you, I despise you, I absolutely loathe you and wish you would just drop dead this instant.

Here's why.

You are using rape in your argument callously.

Two of my sisters were raped. As kids.

So when I see that someone just casually uses rape and paedophilia as part of their bullshit argument, (because rape and paedophilia have absolutely no connection with copyright laws) then my blood boils.

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And please, stop claiming that you know for 100% sure that these damages don't act as a deterrent ("don't act as a deterrent at all"). Rubbish. I don't let my kids or friends pirate at my house because I worry about such damages. I suspect others do as well. Only an apologist would claim that it has no deterrent effect whatsoever, and then offer zero proof to back it up.

I don't worry about it. So we're now tied 1 to 1 on "proof" without anything else to back it up.

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Not that I expect someone as unreasonable as you to seriously consider what I have to say (I fully anticipate being called a pirate with zero evidence backing up your assertion)

stop claiming that you know for 100% sure that these damages don't act as a deterrent

At what point is a deterrent effective? If it deters one person from doing something, is it effective? If it fails to deter one person from doing something, is it ineffective?

And for what it's worth, I believe Mike's point is that if you chase down Kazaa users, the public moves to BitTorrent. If you chase down torrent trackers, they will move to file lockers. If you chase down file lockers, there's always the sneakernet. In essence, you are playing whack-a-mole.

You might consider it a deterrent because it drives people away from Kazaa, but I do not consider that a deterrent because those same people just go somewhere else like torrents, file lockers, etc.

Honestly, I'm amazed that people like you will defend ends-life-as-we-know-it level fines for something like this. Yes, Jammie Thomas deserves punishment, but over four to forty years worth of median household income in the US? You do realize that the law being used against her was originally designed for people who were engaging in commercial copyright infringement for profit and that she was not a commercial operation and she was not doing this for profit? How can you be okay with this kind of outcome?

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"And please, stop claiming that you know for 100% sure that these damages don't act as a deterrent ("don't act as a deterrent at all"). Rubbish. I don't let my kids or friends pirate at my house because I worry about such damages"

Sooo.... your saying you would pirate but your scared you will be caught and fined, NOT because you have respect for the copyright system.
Alright way to go.......

Re: Re:

Sooo.... your saying you would pirate but your scared you will be caught and fined, NOT because you have respect for the copyright system.
Alright way to go.......

Nope. I've already explained that there is more than one reason. I didn't say damages were the ONLY reason. It's not hard to understand. Do you think people always have one and exactly one reason for doing things? Sheesh you guys are desperate.

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Simple logic.
If you have two reasons then by definition one is redundant. Do you unsde4rstand that?

No. I don't understand. Because it's not true. A person can multiple reasons for doing something, some of which are sufficient, some of which aren't, some of which are necessary, and some of which aren't. What you're saying isn't logical at all.

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If you have a moral reason not to do something, then the punishment for doing that something is not relevant. If you have a moral reason not to drink, then the punishment of a hangover is not relevant to you.

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Chronno S. Trigger,
I'll have to disagree with you here, at least in regards to alcohol. I don't drink myself, I think its immoral to drink a substance that will impair your ability to make rational decisions.
AND because I don't want to wake up the next morning with a headache and memory loss.
I have both a moral reason and a practical reason here.

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I have to agree with Rikuo. Although in the UK you can have a limited amount of alcohol and drive legally, I just won't - I don't consider it either moral or sensible. I also avoid drinking a lot because I don't fancy the hangovers. Sometimes, both these reasons co-incide.

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No. I don't understand. Because it's not true. A person can multiple reasons for doing something, some of which are sufficient, some of which aren't, some of which are necessary, and some of which aren't. What you're saying isn't logical at all.
No - actaully it is still you that is confused. There may be many potential reasons for an action - but only one can actually be active in any given situation.

Of course you might argue that a number of weaker reasons might add up to provoke an action that wouldn't have happened otherwise. However in that case they cannot be properly called reasons since they would not be sufficient on their own.

Hence if you say "I don't pirate because it is morally wrong AND because I'm scared of being caught then there are only three possibilities:

1) the moral reason is the real reason - the threat is irrelevant;

2) the threat is the real reason the morality is irrelevant;

3) neither reason is sufficient on its own.

To get back to the original point. You can't claim that you don't pirate for moral reasons and at the same time claim yourself as an example of the effectiveness of deterrence.

Re: Re:

The appeals are 0 for 2. It's pretty simple. There's obviously more going on with these situations than that, but 0 for 2 is the score on the due process argument in the appellate courts. Neither constitutional challenge held up.

I understand that but for piracy, the companies that did nothing wrong wouldn't have been so devastated. Mike focuses on the victims and blames them for not adapting. The court and I focus on the parties that actually did wrong. I understand the need to adapt with the market. I think it's important though to lay blame on those intentionally do wrong.

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I understand that but for piracy, the companies that did nothing wrong wouldn't have been so devastated.

At the time of the start of this period of (alleged) decline (1999-2006), five of the six major labels had been convicted by the Justice Department of engaging in price fixing. Perhaps some of this (alleged) loss in revenue was owing, not to piracy, but to the fact that the record companies had to cease their criminal activities.

Also, coincident with the start of this period of (alleged) decline, members of the RIAA chose to prosecute their fans. Speaking for myself and handful of friends, I can safely say that this contributed to this (alleged) decline in revenues -- at that point I swore off purchasing anything from RIAA-represented labels, after nearly three decades of building a collection of thousands of albums, over six hundred CDs, and over 60 concert videos on VHS.

Maybe in your eyes they did nothing wrong, but their behavior was sufficiently egregious for many music fans to stop supporting the industry.

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"Perhaps some of this (alleged) loss in revenue was owing, not to piracy, but to the fact that the record companies had to cease their criminal activities."

Don't forget too that when digital music downloads came around, the music labels lost even more because people could choose the songs they wanted to download instead of being forced to spend 15 bucks on a CD.

On top of that, the labels began shooting themselves in the feet by cutting out the Artist Development and Promotions departments. One author commented on this saying, "This is when major record labels started depending on one-hit wonders and bubblegum pop to push profits ignoring their own rich history and tradition." (http://www.digiave.net/piracy-didnt-kill-the-music-business/)

This is also the reason why there's very few bands that have seen long term success like the classic rock stars.

These execs don't realize that people can see that. Their consumers can see they're only in it for the money, not to provide a service.

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It's much deeper than that. They are the victims of their own shortsightedness. Piracy is not why they are floundering. The reasons are varied. One is that the transition to CD is complete. You see over the years when they trotted out a new delivery method everyone climbed on and converted to that medium.

Then they stopped taking chances and letting artists grow and instead put all their eggs in the baskets they thought would be the next cash cow. That ended up homogenizing the product so much that it turned a huge portion of the market off.

The list goes on but it's late and I don't feel like researching the ones I can't get right without a little outside help, among those are laws, ya laws, passed that effectively started killing off the record store.

Things are never as simple as piracy done it. It usually entails shooting yourself in the face to try and save your foot or some such nonsense. As I said it's late.

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Those companies are to be blamed for their long standing inertia an failure to adapt is a truth publicly admitted even by some of the majors players (e.g. Universal's Pascal nègre multiple statements). Passing it on "pirates" entirely like they do is a fraud.

The fact that they want to ever expand laws & regulations in their favor trampling our freedom and acting as a prime vector to implementing all means necessary to censorship makes them bullies against the public, not victims.

You may disagree with either or both opinions, fine. It will serve your argument to not flat out misrepresent them as you "tend" to do.

Court completely ignored looking at the damages

It is really frustrating that the court agreed that statutory damages *could* be unconstitutional (the $9 million dmgs argument), but nowhere in the entire opinion even attempts to assess actual damages. The judges bought into the "ZOMG PIRACY BAD!" argument and inferred all sorts of damages "to the industry" and completely neglected to do any analysis at all on the actual harms caused.

The court also seems to have put a lot of weight on the labels' claim that she shared 1000 but they only sued on 24 against her. She was found guilty of sharing 24 songs. It is completely improper to consider that she was "only" sued for 24 but she could have been for 1000. This fact is irrelevant to the question of the constitutionality of damages.

Kudos to the labels I guess - their misinformation campaign was leveraged to great success here. They got ridiculous damage multipliers affirmed with shoddy facts that should never have been admitted or considered by any court.

All to protect those has-beens, materialistic rappers, generic buttrockers, and flash-in-the-pan pop queens (does Justin Bieber count) that have dominated mainstream music since the late 1990s? Yeah, sure is creativity and innovation in this motherfucker.

Basically, it says that the fact that statutory damages are completely out of whack with actual damages doesn't matter, because the point of statutory damages is that they're disconnected from actual damages on purpose (because, in theory, they're put in place because actual damages are difficult to assess).

That's partially what the court said. You left out the inconvenient parts:

The Supreme Court in Williams, however, disagreed that the constitutional inquiry calls for a comparison of an award of statutory damages to actual damages caused by the violation. 251 U.S. at 66. Because the damages award “is imposed as a punishment for the violation of a public law, the Legislature may adjust its amount to the public wrong rather than the private injury, just as if it were going to the state.” Id. The protection of copyrights is a vindication of the public interest, Sony Corp. of Am., 464 U.S. at 429, and statutory damages are “by definition a substitute for unproven or unprovable actual damages.” Cass Cnty. Music Co., 88 F.3d at 643. For copyright infringement, moreover, statutory damages are “designed to discourage wrongful conduct,” in addition to providing “restitution of profit and reparation for injury.” F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 233 (1952).

That they're "out of whack with actual damages doesn't matter" because they are about more than just private injury--they're about the public wrong and the public interest, and they're meant to deter others from committing the same wrongful acts. Truth sucks, I know. Don't blame the messenger (and don't skip over the parts you don't like).

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That they're "out of whack with actual damages doesn't matter" because they are about more than just private injury--they're about the public wrong and the public interest, and they're meant to deter others from committing the same wrongful acts.

Just proves that your courts have yet to learn the lessons of the Bloody Code that draconian punishments intended as a deterrent don't work.

It motivates me...

Nothing makes me more depressed than seeing gleeful torrent users thumbing their nose at copyright. It's even worse when they use the elaborate sophistries drafted by the tenured jerks and repeated ad nauseum around here.

Knowing that the courts will occasionally defend the rights of the hard working creators is more than enough to spur me on to start writing again. Maybe even singing.

Re: It motivates me...

Re: It motivates me...

If the only thing stopping yourself from expressing yourself creatively is the terrifying thought that someone, somewhere out there may hear you without ponying up, then you are leading a sad, pathetic existence and our culture would be better off without your contribution.

Re: Re: It motivates me...

Nonsense. You're twisting what I said to pieces.

I sing all of the time in the shower and I'm certainly whistling now. That has nothing to do with whether anyone is paying me.

But it takes work to put on a good show and it takes money. Top artists often rehearse for months before getting to the stage. New artists often practice even longer. The rich can always self-fund these as follies, but the average joe can't work on big art full-time without revenue.

When I hear that copyright is being enforced, I know that the decision will help spread out the costs more equitably and probably also bring more revenue. That means more artists can devote more time to creating. It's not just a hobby but it's a job.

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But it takes work to put on a good show and it takes money. Top artists often rehearse for months before getting to the stage.
Revenue from live performances is not affected by copyright enforcement on recorded music. What is your point?

Re: Re: Re: Re: It motivates me...

I think his point has something to do with the trickle-down theory of music economics: he practices singing in the shower, and as the water trickles down, he imagines he's been discovered by a record label and was handed a big fat advance. He might just go buy himself a shiny new Corvair with it... art needs inspiration, you know.

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No, I think we should be extending this to bob singing the "Happy Birthday" song, ever. After all, singing copyrighted songs in private is attempting to make enforcement harder for Big Music, and bob doesn't want that does he?

Just in case you haven't figured it out yet...

The justice system is biased towards the corporations who own the politicians. Just remember that campaign contributions have been construed as being 'free speech' -- that should tell you everything you need to know.

Using her numbers, at one time I would have been subject

to BILLIONS of dollars in fines. And as a Minnesota blogger I kept posting that fact over and over again every time Jammie's case came up in the newspaper. I would leave comments in local newspapers explaining that I had downloaded literally over 100,000 songs.

No one ever sued me.

The difference? Jammie had a job and money in the bank. I didn't.

RIAA never sues anyone who doesn't have money to pay, or a paycheck to slap a lien on.

Re: Re: Re: Using her numbers, at one time I would have been subject

Re: Re: Using her numbers, at one time I would have been subject

She got sued for downloading and leaving them available to be downloaded by someone else. This is how P2P works, everyone who downloads something makes it available to be uploaded to someone else the second they have 1k of data. So, in this case, downloading and uploading are interchangeable.

If we want to be picky about it and separate downloading and uploading, we wouldn't have this outcome.

Re: Re: Using her numbers, at one time I would have been subject

No, Thomas-Rasset was sued for copyright infringement by 1. copying (by downloading) and 2. distributing (by making available), both without license. The trials were set up such that the jury was not given the option to say whether she copied or distributed or both; they only had to say whether she infringed, and whether it was willful.

Specifically, in the first trial, the jury instructions were such that she was to be found liable for infringement if the jury believed that she had infringed the reproduction right (by downloading) or the distribution right (by making available). Evidence was presented in favor of both. The jury found that she infringed, period. In the second trial, the erroneous "by making available" was removed from the definition of distribution, but the instructions and result were otherwise pretty much the same. In the third trial, whether she had infringed was not at issue, so it's irrelevant. And in the appeal, the court made very clear that it was not going to weigh in on whether making available is really an infringement of the distribution right.

So to me, regardless of whether making-available is distribution, it seems pretty evident that she was on the hook, and got pounded for the downloading just as much as the distributing.

Consider the case if Ms. Thomas been sued for theft of physical goods of equivalent value to the songs she infringed. Twenty-four items worth $.99 each. Twenty-four $.99 pencils, for example. The fines would have been far less in that case. As there is no logical basis for such a discrepancy, the mere difference of the nature of the product should have no bearing on the amount fined. Therefore, the damages awarded to the RIAA and its labels are grossly disproportionate and must be opposed. Unless you believe, as copyright maximalists do, that it is ethical and reasonable to fine an individual for hundreds of millions of dollars and ruin him or her financially for an act with less provable harm than the theft of handful of pencils.

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The fine isn't for "she obtained 24 songs", it's for "she gave copies of 24 songs to an unknown number of people". I can't imagine the mindset of the people who write these laws, but I assume the fee is supposed to approximate the damages that they think were caused by everyone who downloaded the song.
Of course, that would just lead to more questions, like "why is one woman being penalized for the actions of hundreds or thousands of people?", and "if someone who downloaded from her was caught, would they be fined as well, allowing the company to collect more money than they claim was actually lost?"

It's a bit of a moot point, since these days it's service providers who are under attack rather than individuals, but still.

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I explained this above in response to someone else, but you are incorrect. There was never any evidence presented that she gave copies of the songs to anyone, so that's not what the "fine" (damages award) was for. The award was for copyright infringement, period. She was found liable for infringing either the reproduction right (by downloading) or the distribution right (by making copies available to others [1st trial] or unspecified means [2nd trial]), or both. There was only a liability checkbox, not separate checkboxes for downloading and distributing.

I want nothing to do with the Big Content Industry.They can all kiss my dog's Butt.I will not support any Artist who signs with these Labels either.That is how I do things here.They get nothing from me and I want nothing from them.
Support Local & Indie Art !

One out of three ain't bad

“the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to [federal law] support the constitutionality of the award."

If #1 and #3 justify $9,000 per distribution, they justify $1 gazillion billion. There is no need for minimum damages if minimum damages can never be invoked in the face of “the interests of the public ... and the need for securing uniform adherence to [federal law].”

The public good and the need for making people obey can be used to justify any and all actions, including shooting someone without cause.

I wonder if he could have gone the other way and instead of trying to defend against it, just admit to sharing hundreds of thousands of songs and plead for the maximum amount of damages per song. No court in their right mind would fine an average person more money than the US treasury had on copyright violations...

Furthermore, when the law does not conform to the will of the people, it has no lasting power and will inevitably be overturned. And while these illogically high fines could be seen to act as a deterrent, they do not do so in the way their proponents would like. Rather, they serve only to dissuade others from having any association with those who promote such fines and punishments. No profit can be made from an individual who does not wish to have anything to do with you or your product.

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But on average the public Does approve of safe driving regulations that make sense (speed laws in most cases) and fire code, retail access and ease-of-use concerns that motivate most reasonable parking laws.

Heck, even most stubborn people will admit that as long as the government exists, and taxes and revenue also exists, there must be some kind of Revenue Service, something Internal to the government that exists to make the tax system function (in theory)

SO people do support those laws, far beyond their occasional grouching when one or more of them has some kind of effect on them personally.

Other laws, like the prohibition of alcohol, are so disrespected and disliked by people they get the laws overturned.

Still others, like the prohibition of some narcotics, are more or less ignored by vast swathes of otherwise law-abiding citizens and even ignored by some law enforcement organizations.

“I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.” - Thomas Jefferson (1803)

"they're making it easy for the courts to put in place dangerous precedents that guarantee that copyright law gets no respect from the public, and that damages are wholly outside the realm of reasonable."

This will cause everybody out of disrespect for the law to break the law. This is the bottom line, this will be the result from the Tenenbaum and Thomas-Rasset decisions.

Like it or hate it, our taxes are uses for some number of things that are useful. That's why we put up with the IRS. Also the IRS can take more then x% of your income in a year where x is less then 100.

In this court order we've taken something greater then her half her life time earnings. But since congress has not changed the damage calculation since the 80s its becoming a big sore spot. Sadly no congress critter is willing to make a change other then perhaps Ron Wyden I don't think anything will change for a while.

The kinks in the armor will really show when we get internet savvy reps from more then a handful of states, but I doubt that will happen for a good 20 years.

Re: Re: if sharing is so bad

These could be "dangerous precendents." Or it could be that guaranteeing "that copyright law gets no respect from the public, and that damages are wholly outside the realm of reasonable" are useful and necessary steps in bringing down the copyright regime entirely.

"I contacted Thomas-Rasset's lawyer, K.A.D. "Kiwi" Camara about today's appellate ruling restoring the judgment from Thomas-Rasset's first trial. Would Thomas-Rasset press on to the only legal avenue still open to her?

"Because even the reduced amount of damages that we won is punitive, the court of appeals erred by failing to apply the Supreme Court's punitive damages cases," he told me by e-mail. "We will seek certiorari from the Supreme Court to correct that error."

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"...that we won..." is utter nonsense. His client "won" nothing. If anything, his client lost on the linchpin issue he and others have been arguing before our appellate courts, namely, that existing punitive damages precedent should be applied in lieu of existing statutory damages precedent. Perhaps sometime the Supreme Court will be obliged to consider stare decisis, but it seems doubtful that the JRT matter is such a case.